United States District Court, D. New Mexico
PATRICIA DUKERT, Individually and as Personal Representative of the Estate of Clare William Dukert, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
COURT'S FINDINGS OF FACT AND CONCLUSIONS OF
CASE is a wrongful death action filed by Patricia Dukert
(“Plaintiff”), Individually and as Personal
Representative of the Estate of Clare William Dukert, against
the United States of America (“Defendant”) as a
result of alleged medical malpractice by physicians at the
Veterans Administration (“VA”) who treated the
late Clare William Dukert (“Mr. Dukert”). Trial
on the merits was conducted before the undersigned from
September 7-9, 2016. After having considered all of the
evidence and testimony presented at trial, after reviewing
the parties' pre-trial and post-trial submissions (Docs.
66, 67, 74, 75, 81 & 82) and after considering the
applicable law, the Court finds that Plaintiff failed to meet
her burden of proving medical negligence at trial, and
therefore finds in favor of Defendant.
Dukert was diagnosed with adenocarcinoma of the colon in
January 2010, when a malignant mass was found in his cecum. A
hemicolectomy was performed one month later. Mr. Dukert
underwent five more colonoscopies with polypectomy and biopsy
at the 35-40 cm level (measured from the anus) of the sigmoid
colon for surveillance and treatment of potentially cancerous
lesions, on the following dates: April 10, 2012, June 7,
2012, September 7, 2012 and November 14, 2012. A colonoscopy
performed on February 17, 2011 revealed no polyps in the
sigmoid colon. See Deft. Fact 80. All of the procedures were
performed at the VA Hospital in Albuquerque, New Mexico. All
of the polyps subsequently found and treated were found to be
benign. The sixth procedure was done on February 15, 2015,
during which doctors attempted to remove a residual or
recurrent benign (non-cancerous) polyp and treated the
residual polyp with argon plasma coagulation
(“APC”) instead of only taking a biopsy of the
polyp. Mr. Dukert suffered a perforation of his
sigmoid colon as a result of this procedure in the area where
the polypectomy was performed.
perforation was discovered when Mr. Dukert became very ill
with fever, chills, nausea and vomiting two days after the
procedure. He was seen in the emergency room at the Sierra
Vista Hospital in Truth or Consequences, New Mexico, where
imaging identified a perforation of the sigmoid colon at the
site of the February 15, 2013 polypectomy. He was diagnosed
with acute sepsis and airflifted to Del Sol Medical Center
(“Del Sol”) in El Paso, Texas for emergency
surgery to repair the colon perforation. Following corrective
surgery for the colon perforation, Mr. Dukert suffered
multiple complications including deep vein thrombosis,
cardiac and renal dysfunction and prolonged intubation for
respiratory distress. On March 27, 2013, Mr. Dukert was
discharged from Del Sol to Casa de Oro, a skilled nursing
facility in Las Cruces, N.M. for rehabilitation and
monitoring, and remained there until May 31, 2013, after
which Mr. Dukert received physical and occupational therapy
and home health nursing for ostomy care.
9, 2013, Mr. Dukert had an acute onset of nausea and
vomiting, which was diagnosed as small bowel obstruction. He
was transferred to Mountain View Regional Medical Center in
Las Cruces, where he underwent surgery. He was discharged on
August 2, 2013, but then readmitted the following day when he
had profuse bleeding in his wound area. Mr. Dukert was
discharged from Mountain View Regional Medical Center on
August 7, 2013 and readmitted again on August 15, 2013, where
he died a week later on August 22, 2013.
Mr. Dukert's wife, filed this lawsuit as personal
representative for her husband's estate, asserting claims
against the Defendant under the Federal Tort Claims Act, 28
U.S.C. §§1346(b) and 2671 et seq. She contends that
her husband's death was the result of medical negligence
that occurred during the February 15, 2013 colonoscopy.
Defendant contends that his death was caused instead by
cardiorespiratory arrest secondary to severe metabolic
acidosis secondary to septic shock, and related to
multi-organ failure. The Court next describes the
parties' positions so as to put its factual findings in
claims that the doctors who performed the February 15, 2013
polypectomy, Dr. Henry Lin and Dr. Brian Story, failed to
follow the accepted standard of care for the treatment and
surveillance of residual polyps by performing colonoscopic
polypectomy after multiple prior similar procedures in the
same location, instead of performing abdominal surgery.
Plaintiff also contends that these doctors failed to provide
competent care and safe excision during that procedure which
resulted in the perforation of Mr. Dukert's colon and
eventually his death. Plaintiff contends that Mr. Dukert
underwent too many colon biopsies and also that the use of
argon plasma coagulation (“APC”) during Mr.
Dukert's February 15, 2013 procedure was inappropriate
because it increased the risk of perforation.
position is that Dr. Lin and Dr. Story were not negligent in
offering Mr. Dukert the non-surgical option as well as the
surgical option. Mr. Dukert had a history of colon cancer
along with recurrent polyps, and Mr. Dukert was at high risk
for surgical intervention given his super obesity and serious
comorbities that affected every major organ of his
body, and also because Mr. Dukert was opposed to surgery
after having experienced adverse effects following his 2010
hemicolectomy. Defendant maintains that it was appropriate
for Mr. Dukert to undergo surveillance colonoscopies and
necessary to remove the polyps found in the last two
procedures because they were possibly precancerous in nature.
Defendant also contends that, based on the testimony at
trial, APC has been found to be an effective and safe method
in the management of polyp remnants in the colon, and that
perforation was an unfortunate complication of Mr.
Dukert's last endoscopic procedure but was not the cause
of his death.
the two-day trial, testimony was presented by witnesses
including Plaintiff's expert Dr. Theodore Coutsoftides, a
colorectal surgeon, and defense expert Dr. James Edward
Martinez, a gastroenterologist. The gastroenterologists who
performed the last two colonoscopic procedures-(1) Dr. Henry
Lin, an attending gastroenterologist and supervising
endoscopist, (2) Dr. Kevin Kolendich, an attending
gastroenterologist, and (3) Dr. Brian Story, who was
finishing up a fellowship in colonoscopic procedures at the
VA, also testified at trial. Dr. Kolendich and Dr. Story
testified at trial by videoconference. Two other witnesses
testified at trial, the Plaintiff and Mr. Howard Schroeder,
who was Mr. Dukert's former employer and close friend.
Federal Tort Claims Act (“FTCA”) includes a
limited waiver of the federal government's sovereign
immunity. It allows a claimant to be awarded damages for
personal injury or death caused by the negligent or wrongful
act or omission of any employee of the government while
acting within the scope of employment under circumstances
where the United States, if it were a private person, would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred. 28 U.S.C.
§§ 1346(b)(1) and 2674. Under the FTCA, the
Government's liability is to be determined by applying
the law of the place where the act or omission occurred. 28
U.S.C. § 1346(b). It is undisputed that the VA
physicians were employees of Defendant and that they were
acting within the scope of employment, for purposes of
jurisdiction under the FTCA.
actions brought against the United States under the FTCA, the
district court must look to and apply the law of the place
where the negligent or wrongful acts occurred. Estate of
Trentadue ex rel. Aguilar v. U.S., 397 F.3d 840 (10th
Cir. 2005). In New Mexico, in order to prove medical
malpractice, a plaintiff has the burden of showing that (1)
the defendant owed the plaintiff a duty recognized by law;
(2) the defendant breached the duty by departing from the
proper standard of medical practice recognized in the
community; and (3) the acts or omissions complained of
proximately caused the plaintiff's injuries.
Blauwkamp v. University of New Mexico Hosp., 114
N.M. 228, 231 (N.M.App., 1992) (citing SCRA 1986 13-1101
(Repl. 1991)). Doctors in New Mexico must exercise a duty of
care consistent with a reasonably well-qualified healthcare
provider “practicing under similar circumstances,
giving due consideration to the locality involved.”
NMRA UJI-Civ.13-1101. A doctor “does not guarantee a
good medical result. An unintended incident of treatment [or
a] poor medical result is not, in itself, evidence of any
wrongdoing by the [doctor]. Instead, the patient must prove
that the poor medical result [or the] unintended incident of
treatment was caused by the doctor's negligence.”
NMRA UJI-Civ 13-1112.
are several areas of contention which form the basis for
Plaintiff's medical negligence claims and on which this
case turns: (1) Mr. Dukert's opposition to surgery; (2)
the appropriateness of surgery given his multiple medical
problems, and (3) the use of APC during the February 15, 2013
procedure. The following are the Court's findings and
conclusions on these issues.
Dukert was a 62-year-old non-service connected male veteran
patient at the VA Medical Center in Albuquerque. He entered
military service in the United States Army on May 28, 1970,
and separated from military service, with an honorable
discharge, on December 23, 1971. Deft.. Fact 43.
Dukert moved to New Mexico from Michigan in 2007 and was
employed full-time locally as a truck repair mechanic and
driver. He stood 5'10” tall. Between 2010 and 2012,
his weight varied between 358 and 382 pounds. During that
time period, his body mass index (“BMI”) varied
from 50 to almost 55, which placed him in the category of
“super obese.” Deft.. Facts 44 & 45,
Testimony of Dr. Lin, TR at 304:11-23.
January 2010, Mr. Dukert was diagnosed with colon cancer. In
addition to the malignant tumor, the VA surgeon also
identified one small polyp at the ileocecal valve; one large
and three medium sized sessile polyps in the transverse
colon, and one large sessile polyp in the sigmoid colon. All
polyps were completely removed endoscopically or surgically
in 2010, which was confirmed by the Pathology Report. Mr.
Dukert never again developed a sessile polyp greater than 2
cm. Mr. Dukert had diseases in multiple organ systems. His
other serious health issues included diabetes, blood pressure
problems, chronic kidney disease, gout, hyperlipidemia,
vascular problems, sleep apnea, super obesity with a BMI of
52-53, respiratory issues requiring home oxygen,
supraventricular tachycardia, and a history of colon cancer
with hemicolectomy. Deft.. Fact 8, testimony of Drs.
Kolendich, Martinez & Lin, TR at 345:1-4; 600:3-10;
Colonoscopic perforation is a well-recognized and serious
complication following lower gastrointestinal endoscopies,
but it occurs very rarely. Perforation as the result of
diagnostic colonoscopy has been reported in less than 0.1% of
cases and perforation occurs after colonoscopic polypectomy
in about 0.2% of cases. Deft. Fact 9; Pltff. Ex. 27.
its role as gatekeeper, the Court takes no issue with the
qualifications of any of the experts who testified at trial.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999) (Rule 702 gatekeeping duties of the trial judge apply
to all expert testimony). However, in this bench trial, the
Court also assumes the role of fact finder weighing the
evidence of the witness, including expert witnesses, and
finds that the weight of the evidence leans in favor of
Defendant's expert, Dr. Martinez. The Court also finds
that the testimony of Mr. Dukert's treating physicians is
consistent with Dr. Martinez' testimony.
Plaintiff's expert, Dr. Coutsoftides is a colorectal
surgeon and not a gastroenterologist. Defendant's expert,
Dr. Martinez, is a board certified gastroenterologist who
practices in the Albuquerque area. Dr. Lin is a board
certified gastroenterologist and at all times relevant was
the Chief of Gastroenterology at the Raymond G. Murphy VA
Medical Center (“VA”). Drs. Kolendich and Story
are board certified gastroenterologists who formerly worked
at the VA. Deft. Fact 14.
Gastroenterology and colorectal surgery are different medical
specialties that require separate boards, and doctors must
perform more endoscopies to pass gastroenterology training
than colorectal surgeons have to perform to pass colorectal
surgery training. Deft. Fact 15, TR 111:5-14.
Gastroenterologists typically perform many more colonoscopies
than colorectal surgeons. Dr. Coutsoftides testified he has
performed an average of approximately 250 colonoscopies a
year over his career. In comparison, Dr. Henry Lin testified
that he performs over 1, 500 colonoscopies a year and
Defendant's expert, gastroenterologist Dr. James
Martinez, testified he also typically performs 1, 500
colonoscopies per year. While both gastroenterologists and
colorectal surgeons may perform endoscopic procedures and are
held to the same standard of care when performing
colonoscopies, gastroenterologists undergo more specialized
and more extensive training in endoscopic procedures,
including colonoscopy. Gastroenterologists also regularly
employ newer, more advanced techniques in caring for the
patient's colonic health than do colorectal surgeons.
Deft. Facts 18, 20 & 21, Testimony of Dr. Coutsofides, TR
at 37:11, Dr. Lin, TR at 285:4-5; 494:15; 495:13 and Dr.
Martinez, TR at 500:10 & 502:20-23.
Endoscopy is the use of narrow, flexible lighted tubes with
built-in video cameras (endoscope), to visualize the inside
of the intestinal tract. Colonoscopy is one type of
endoscopy. Colonoscopy is a diagnostic and sometimes
therapeutic procedure in which a flexible tube that is
equipped with a camera at the end is introduced into the
colon (large intestine) for the purpose of examining the
lining of the colon. If abnormal areas are found, the
endoscopist can take a sample of the tissue (biopsy) or
remove the entire abnormality (resection of the lesion, a/k/a
removal of the polyp). Deft. Fact 16.
Measurements from the rectum regarding location of polyps in
the colon are inaccurate because the colon is very stretchy
and elastic. Deft. Fact 27.
polypectomy is the removal of a polyp. A pedunculated polyp
is a polyp with a stalk that looks similar to a mushroom;
these polyps are readily amputated with a wire snare placed
and tightened around the stalk of the polyp. A sessile polyp
is a flat polyp that may be resistant to such amputation with
a wire snare. If attempts at saline injection to raise up the
sessile polyp to aid in removal are unsuccessful, then
piecemeal polypectomy is the standard of care for removal of
a sessile polyp. During piecemeal polypectomy, a biopsy
forceps, which is a tiny tool, is repeatedly used to
“bite off” pieces of visible abnormal tissue
until the entirety of the visualized polyp is removed. Deft.
intestine has four layers. The body replaces the mucosa
(lining) in the colon, which is nearly transparent, every
three days. Below the mucosa is the submucosa, which has
feeding blood vessels that run halfway down. After a
polypectomy, a healing response is initiated in the colon,
resulting in a scar. The visible scar is a sign of completed
healing. However, in removing polyps, the endoscopist is
working above the scar, in the mucosa, which is why none of
Mr. Dukert's pathology samples contained scar tissue.
When the endoscopist no longer sees the blood vessels but
sees only a scar, that scar is between the blood vessels and
the mucosa. Deft. Fact 33, Testimony of Dr. Lin, TR at
instruments used by the endoscopist are very tiny. The biopsy
forceps cannot remove tissue deeper than the mucosa. Deft.
Fact 34, Testimony of Dr. Lin, TR at 292:1-10.
most common types of adenomas are called tubular adenomas.
Tubular adenomas look different under the microscope from the
normal lining of the colon, with glands that look like simple
tubules. Testimony of Drs. Lin and Kolendich.70 15.
“Inking” or “tattooing” is a method
of marking a general site or area of the colon where a polyp
has been removed. Tattooing does not pinpoint a specific site
of a previous polyp. In contrast as to what is generally
understood from tattooing on the surface of the skin, there
is a fairly large area that is discolored. Deft. Fact 26,
Testimony of Drs. Lin & Kolendich, TR at
is recommended that patients with sessile adenomas that are
removed piecemeal should be considered for follow up at
intervals of 2 to 6 months to verify complete removal, and
afterwards, surveillance should be individualized based on
the endoscopist's judgment. Deft. Fact 29, Pltff's
Ex. 29 (2006 colonoscopy surveillance guidelines). The
medical providers at the VA followed this recommendation.
most common types of adenomas are called tubular adenomas.
Tubular adenomas look different under the microscope from the
normal lining of the colon, with glands that look like simple
tubules. Deft. Fact 37, Testimony of Drs. Lin and Kolendich,
TR at 298-299.
second type of adenoma is called villous adenoma. Just as
tubular adenoma looks different from normal tissue, villous
adenoma looks totally different from tubular adenoma. These
two tissue types are distinct not only because of their
different appearance but also because they have different
biology. The villous type has elongated glands that have a
fern-like growth pattern and a higher risk of cancer. Deft.
Fact 38, Testimony of Dr. Lin, TR at 329:18-23 19. A third
type of adenomatous polyp has a mixture of tubular and
villous patterns and is called tubulovillous adenoma. Like
villous adenoma, this is also considered a high risk
histology (microscopic structure at risk of becoming
malignant in the future). However, whether it is a tubular,
villous or tubulovillous adenoma, it is still a benign tumor,
meaning a neoplasm with malignant potential but not actual
malignancy. The biology behind the adenomas makes them
different, and polyps do not “morph” into other
adenomas. Deft. Facts 39, 40, Testimony of Drs. Lin &
Martinez, TR at 299:3-8; Testimony of Dr. Kolendich, TR at
Residual polyp is defined as a remnant of a polyp (tumor or
cancer) after primary, curative therapy. A recurrent polyp
(also known as recurrence of polyps) is defined as the
development of one or more new polyps after a previous polyp
has been removed. Deft. Fact 30.
accepted medical literature provides that, “When there
is an indication to examine the entire large bowel,
colonoscopy is the diagnostic procedure of choice. It is the
most accurate method of detecting polyps of all sizes and it
allows immediate biopsy or polypectomy. Most polyps found
during colonoscopy can be completely and safely resected,
usually using electrocautery techniques. Scientific studies
now conclusively show that resecting adenomatous polyps
prevents colorectal cancer.” Deft. Fact 17, Bond
Prior to undergoing a colonoscopy, patients must undergo a
specified colonoscopy preparation to clean out the colon.
This preparation usually involves a liquid diet, medication,
and drinking copious amounts of fluid, including Golytely.
Some patients, especially diabetic patients, frequently have
difficulty adequately cleaning out their colons, despite
carefully following their doctor's instructions for
colonoscopy preparation. Plaintiff testified that Mr. Dukert
“absolutely” followed his doctors'
recommendations for extended bowel preparation. Testimony of
Patricia Dukert. Despite extended preparation, almost triple
what would be required of most patients, Mr. Dukert had
difficulty cleaning out his colon prior to his colonoscopies.
Deft. Facts 22-24; Testimony of Drs. Lin & Kolendich, TR
at 315:25-316:4; 179:5-10; Testimony of Mrs. Dukert, TR at
patient who repeatedly presents for colonoscopy with a poorly
prepped colon would also present similarly for elective colon
surgery; so whether the patient had emergent colon surgery
after a perforation or whether the patient had elective colon
surgery, there would be spillage (of the fecal contents of
the colon into the abdominal cavity). Dr. Lin testified that
if Mr. Dukert had undergone a colon surgery instead of a
colonoscopy on February 15, 2013, there is no medical reason
to believe that he could have avoided postsurgical
complications. The myriad of surgical complications suffered
by Mr. Dukert after the perforation could still have occurred
if he had undergone surgery without the perforation. Deft.
Fact 25, Testimony of Dr. Lin, TR at 264:20-23; 264:6-16;